New scholarship by Travis Crum forthcoming in the Columbia Law Review—abstract below.  Congrats on a great placement Travis!

In the redistricting context, the Supreme Court has interpreted the Equal Protection Clause in diametrically opposite ways, subjecting mapmakers to competing hazards of liability. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked into districts. Congress, moreover, has endorsed and expanded vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race. Thus, racial gerrymandering claims threaten Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendments governed the use of race during redistricting. Section One of the Fourteenth Amendment was understood to exclude political rights. By contrast, the Fifteenth Amendment enfranchised Black men nationwide. The Reconstruction Framers argued over whether it also protected the right to hold office, but they barely referenced redistricting while debating the Fifteenth Amendment.

This Essay then turns to post-ratification evidence to ascertain original understanding. It begins by examining the Reconstruction Congress’s enforcement acts, none of which directly addressed the use of race during redistricting. This Essay also excavates redistricting plans enacted by Southern States during the 1870 and 1880 redistricting cycles, finding that Republican States sought to empower Black voters, whereas Democratic States packed and cracked Black voters.

This Essay argues that, from an originalist perspective, vote dilution and racial gerrymandering claims are improperly grounded in the Equal Protection Clause. This Essay further contends that, under the Fifteenth Amendment, there is some historical evidence in favor of vote dilution claims but virtually no historical support for racial gerrymandering claims. The upshot is that Congress could enact Section 2 pursuant to its Fifteenth Amendment enforcement authority to protect the right to vote and hold office.